Matter of Waters v. Taylor Co... 218 N. Y. 248, distinguished. 127 People v. Campanelli.

Western Union Tel. Co. v. Foster. 247 U. S. 105, distinguished.. 404 16 N. Y. 392, followed...... 476

CASES DECIDED

IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

COMMENCING DECEMBER 10, 1918.

In the Matter of the Application of CHARLES S. WHITMAN, Respondent, for a Judicial Review of Ballots under Section 381 of the Election Law.

ALFRED E. SMITH, Appellant.

Elections purpose and scope of section 381 of Election Law - ordinary writ of mandamus authorized thereby when affidavit insufficient to warrant issuance of writ-court cannot, under section 381 of Election Law, direct production of protested, void or blank ballots Appellate Division cannot, under section 381, order judicial review of ballots cast order of Appellate Division modifying order is appealable of right to Court of Appeals.

1. Section 381 of the Election Law (Cons. Laws, ch. 17) empowers the court, under the requisite allegations in behalf of a candidate voted for at an election and sufficient proof, to require, through a writ of mandamus, the board of canvassers of the return of the inspectors of election, to recanvass and correct the errors in the original canvass of the protested, or void, or blank ballots. The writ of mandamus so authorized is the ordinary writ and the ordinary and established rules and procedure are applicable to it.

2. The applicant must, by written and verified allegations, present to the court facts which, if true and unavoided by the defensive facts, prove that he is under a grievance or injury which the, writ would remedy and that he is entitled to that remedy, and the averments presenting those facts and essential to the issuance of the peremptory

[225 N. Y.]

Statement of case.

[Dec.,

writ cannot be upon mere information and belief of the affiant. Hence an affidavit, in a proceeding under this section, which does not aver that the inspectors of election made an error or omitted any duty, is insufficient to empower the court to issue a writ of mandamus.

3. Section 381 of the Election Law authorizes exclusively the application for the writ, and the order for and its issuance in accordance with the established rules relating to that remedy. It does not ontain any provision empowering the court to order the custodian of the protested, void or blank ballots to produce those ballots to the court for any purpose. And the court cannot by the effect of any of its provisions direct the production of them.

66

4. No provision of section 381 empowers the Appellate Division to institute or order, as a proceeding, “ a judicial review of the ballots cast," or to order the Special Term to enter upon and conduct such a review or, in the first instance, to order the Special Term to inspect or investigate the ballots or to order the custodian of the ballots to produce them before the Special Term, nor can the provisions of section 374 be made the basis of such an order where the proceeding was expressly and concededly commenced, and from the beginning has been opposed, under section 381.

5. The order of the Appellate Division is one of modification (Code Civ. Pro. § 190, subd. 1) and also institutes a proceeding distinct, independent and involving no further or future order; hence, an appeal may, of right, be taken to this court.

Matter of Whitman, 185 App. Div. 571, reversed.

(Argued December 4, 1918; decided December 10, 1918.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 29, 1918, which modified and affirmed as modified an order of Special Term granting a motion for a recanvass and a judicial review of ballots cast at the general election, held November 5, 1918, for the office of governor in a proceeding instituted under section 381 of the Election Law.

The facts, so far as material, are stated in the opinion.

Abram I. Elkus, James A. Foley, John Godfrey Saxe and Joseph M. Proskauer for appellant. The Appellate Division has wholly misconceived the power and duty